Admiralty Towers II [2001] QBCCMCmr 197 (3 April 2001)

RA MeekREFERENCE: 0167-2001

INTERIM ORDER OF AN ADJUDICATOR

MADE UNDER PART 10 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	15344
Name of Scheme:	Admiralty Towers II
Address of Scheme:	501 Queen Street BRISBANE QLD 4000

TAKE NOTICE that pursuant to an application made under the abovementioned Act by

Anthony Noel Watson-Brown, the co-owner of lot 136



RA MeekI hereby order that the application by Anthony Noel Watson-Brown, the co-owner of lot 136, for an interim order that prevents any dealing with the ownership of the rights under the Management and Letting Agreement the subject of the disputed resolution, is dismissed.

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STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0167-2001

“Admiralty Towers II” CMS 15344

The applicant, Anthony Noel Watson-Brown, the co-owner of lot 136, has sought a number of orders of an adjudicator under the Body Corporate and Community Management Act 1997 (the Act) relative to the AGM of the body corporate held on 21 February 2001 (the meeting). These will be considered in the context of the making of a final order to this application.

The Applicant has also sought the following interim order of an adjudicator, quote -

An interim order preventing any dealing with the ownership of the rights under the Management and Letting Agreement the subject of the disputed resolution.

Section 225(1) provides that an adjudicator may make an interim order if satisfied, on reasonable grounds, that an interim order is necessary because of the nature or urgency of the circumstances to which the application relates. An adjudicator’s order may contain ancillary or consequential provisions the adjudicator considers necessary or appropriate (section 230(1)).

The “disputed resolution” referred to by the applicant was motion 7 considered at the meeting. Motion 7, headed DEED OF VARIATION – MANAGEMENT AND LETTING AGREEMENT ... Proposed by John Sklavos (Co-Owner of Lot 3) (Ordinary Resolution), proposed as follows –

That the body corporate enter into a Deed of Variation for the purpose of extending the second option in the Management and Letting Agreement dated 11^th March 1997 by one (1) year from three (3) to four (4) years in accordance with the form of the Deed circulated with this Motion.

And that the chairperson and secretary be authorised to affix the seal of the body corporate to the Deed of Variation.

The applicant states that this motion was carried by a vote of 61 in favour, 57 against, and 9 abstentions. The applicant has also sought the invalidation of this resolution, and this aspect will be considered in the context of the final order. However, the interim order as sought by the applicant is that there be no dealing with the ownership of the rights under the Management and Letting Agreement the subject of the disputed resolution, presumably until a final order is made.

In a facsimile to this office of 19 March 2001, the applicant has explained that the “urgent need for the interim order is that the present owners of the management rights are in negotiations for the sale or transfer of those rights”. This is the only ground I can ascertain which has been provided for the making of the interim order as sought.

I have received a submission in response to the interim order, signed by the chairperson, D Trowse. That submission is limited to the terms of the interim order as sought, and I acknowledge that this is all that was requested at this time. The submission commences –

The applicant has not stated any grounds or argument in support of the interim order sought. As appears from the circumstances set out below the body corporate submits that the applicant has not demonstrated a sufficiently persuasive case on the merits to justify the making of an interim order.

Specifically, in terms of the interim order sought, the body corporate states –

It is as well also to pay particular attention to the terms of the interim order sought. It is, at least in that respect, a particularly bold application as it would seek to restrain any sale or assignment of the manager’s rights. Unless one assumes some laxity in the draftsmanship of the terms of the order sought it is apparent that the interim order sought would seek to restrain any dealing with the ownership of the rights under the management and letting agreement and not merely the dispute concerning the efficacy of the resolution for the further year. ...

The body corporate runs a further argument that the application is defective to the extent that it does not name the current manager and letting agent, The Pacific Admiralty Towers 11 Pty Ltd (the manager) as a party to the dispute, on the basis that the manager will be affected if the order sought is made. I agree that if the interim order as sought were made, the manager, would be affected. I acknowledge the body corporate’s point, however I do not agree that the application is defective and lacking in jurisdiction because of this. The terms of section 182 preclude there being a dispute between an owner and a service contractor or letting agent for the scheme. Therefore it was technically correct for the applicant not to name the manager as a person against whom an order is sought. Further, as I intend to dismiss the application for the interim order, for reasons I will outline shortly, then there is no potential for the manager to be affected at least at this stage. In terms of the application for final orders yet to be considered, I note that the application seeks the invalidation of the resolution and not to prevent any dealing with the agreement. Given this, it is arguable that the manager would not strictly be “affected” if the final order sought was made. In any event, I intend to allow the manager to provide a submission to the application for final orders to be limited to the application for invalidation of the resolution dealing with the deed of variation of the management and letting agreement.

As for my reasons for dismissing the requested interim order, I consider that the order as sought by the applicant is simply too wide, and does not go directly to the subject of the resolution sought to be invalidated. I consider it beyond the terms of my jurisdiction to order a party to an agreement to not deal with that agreement, including the transfer thereof. Both parties to the agreement have legal rights arising from that agreement. Whilst my jurisdiction might extend to determining the validity of a resolution affecting the agreement, it does not extend to the agreement per se, excepting perhaps where the agreement was clearly in contravention of the Act and regulation module (for example, as to the term of the agreement).

It is open however for me to invalidate the resolution affecting the agreement as part of the final order, if I consider such an order to be justified. Any transfer of the management agreement will be subject to this potentiality.

This matter will now be investigated in accordance with the usual processes undertaken by this office. A final order regarding the application will be made in due course.